Immigration: Gang of Eight Would Make H-1B Program Unworkable

Supporters of the Gang of Eight immigration bill argue they want to make immigrating legally simpler, but their bill would make the H-1B system for highly skilled workers almost unworkable.

H-1B visas allow U.S. companies to hire highly educated foreign workers for occupations requiring specialized skills and knowledge. Employers must pay H-1B workers the “prevailing wage” and certify that their employment will not adversely affect other employees. This allows companies to expand and create more jobs for American workers as well.

Section 4211 of the Gang of Eight bill guts the H-1B program by imposing heavy new restrictions. It would force employers using H-1B visas to:

Advertise the job for at least 30 days in a Department of Labor online database;

Offer the job to any “equally or better qualified” American who applies;

Not displace any of their U.S. employees for a six-month window surrounding the H-1B visa application unless they can show that they have not decreased the number of workers in the same “job zone” for the past year; and

Follow even stricter regulations if more than 15 percent of their workforce uses the program.

Forcing businesses to pay H-1B workers above-market wages is bad enough. The other restrictions would create a bureaucratic nightmare for employers and put them in legal jeopardy. For instance, how can an employer prove that it has offered the job to all “equally qualified” American applicants except by choosing them over the H-1B worker? Qualifications are inherently subjective. They depend on a business’s unique needs and a worker’s unique skills. Nonetheless, employers would have to objectively prove—according to the Department of Labor’s standards—that each H-1B hire had better qualifications than every rejected American applicant.

The “non-displacement” requirement forces H-1B employers to prove that each employee who quit was not effectively discharged and that performance problems fully justified any layoffs. Again, the Department of Labor would establish the standards for evaluating such personnel actions.

The government lacks the information necessary to make these subjective judgments. Every business with H-1B employees would risk legal liability. Abusive government agents could easily argue that an American worker had the same qualifications as a foreign applicant and levy stiff fines. The IRS scandal demonstrates why businesses do not trust the government not to abuse such authority.

Rather than face this legal uncertainty and endure restrictions on their personnel actions, many employers would stop using the H-1B program altogether. This happened when Congress applied similar “recruitment and non-displacement” requirements to financial institutions that received bailout funds. Rather than comply, the affected businesses dropped out of the H-1B program and rescinded existing job offers.

The H-1B program allows companies to fill vital highly skilled positions—and keep their operations in America. It benefits American workers and businesses. Congress should not make the H-1B system for highly skilled immigrants nearly unmanageable.

CORRECTION: An earlier version of this post did not clarify that this post refers only to the H-1B visa system, not to other systems for highly skilled immigration.

The Daily Signal depends on the support of readers like you. Donate now

As a research fellow in labor economics at The Heritage Foundation, James Sherk researches ways to promote competition and mobility in the workforce rather than erect barriers that prevent workers from getting ahead. Read his research.

Don’t have time to read the Washington Post or New York Times? Then get The Morning Bell, an early morning edition of the day’s most important political news, conservative commentary and original reporting from a team committed to following the truth no matter where it leads.

Email address

Ever feel like the only difference between the New York Times and Washington Post is the name? We do. Try the Morning Bell and get the day’s most important news and commentary from a team committed to the truth in formats that respect your time…and your intelligence.